WASHINGTON ― Reversing a position the Justice Department has maintained for years, the Trump administration’s Civil Rights Division will state in federal court this week that the federal government no longer claims Texas legislators acted with discriminatory intent in 2011 when they passed one of the strictest voter ID laws in the nation.
The Justice Department will still take the position that the Texas voter ID law has a discriminatory impact on black and Latino voters, according to a source familiar with their decision. It’s unclear at this point whether DOJ will take the position that Texas legislatures acted without discriminatory intent, or if they simply will remain neutral on the question, but a filing is expected by the end of the day.
The DOJ’s new position is a disappointment to voting rights advocates, and evidently within the Civil Rights Division, where lawyers were worried about the future of the division under Trump and Attorney General Jeff Sessions. Federal court records indicated that John Gore, currently the No. 2 official in the Civil Rights Division, will represent the Justice Department in federal court on Tuesday.
That’s quite unusual: Gore’s position is typically managerial, and there are any number of career Civil Rights Division attorneys who normally would argue the case, including several line attorneys in the Voting Section who have been working on the Texas case for years. (The acting head of the Civil Rights Division in the Trump administration, Tom Wheeler, is recused from the Texas voter ID case because he offered Texas lawmakers advice on writing the law.) Before he joined Trump’s Justice Department, Gore defended Republican redistricting plans from court challenges. Gore also helped file an amicus brief in support of Virginia’s voter ID law, though that state’s law was less restrictive than other voter ID laws and was upheld by another federal appeals court.
The issue before the federal court is whether Texas would be placed under pre-clearance, requiring it to run any changes to its election laws by the federal government before they go into effect. Texas had previously been required to clear such changes, but a 2013 Supreme Court decision gutted a key provision of the Voting Rights Act, after which Texas tried to move forward with the implementation of the law.
The Texas voter ID law ― signed by former Texas Gov. Rick Perry, Trump’s nominee for Energy Secretary ― was called an “unconstitutional poll tax” by a federal judge in 2014. Though the judge said she found no “smoking guns” that revealed a racist intention behind the law, she found it was passed with discriminatory intent. Last year, the U.S. Court of Appeals for the 5th Circuit found the law had a discriminatory impact, but kicked the question of whether it was purposefully discriminatory back down to the lower court.
The outside civil rights groups that are part of the case will press on without the support of Sessions’ Justice Department.
This story will be updated with details on DOJ’s filing.